Jonathan Micolta Bustos, Petitioner v. Warden, FCI Berlin, Respondent

2023 DNH 047

• Court: District Court, D. New Hampshire
• Decided: April 27, 2023
• Docket: 23-cv-097-SM
• Status: Published

Opinion

UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Jonathan Micolta Bustos, Petitioner

v. Case No. 23-cv-097-SM Opinion No. 2023 DNH 047

Warden, FCI Berlin, Respondent

O R D E R

Jonathan Micolta Bustos is a federal prisoner currently

being held at the Federal Correctional Institution in Berlin,

New Hampshire. He brings a petition pursuant to 28 U.S.C. §

2241 saying the Bureau of Prisons (“BOP”) has improperly

classified him as “ineligible” to apply time credits he has

earned under the First Step Act and, therefore, incorrectly

calculated his projected release date. He seeks an order

directing the BOP to properly account for those time credits and

to amend his projected release date by one year.

When Micolta Bustos filed his petition, his claims had

merit. But, shortly thereafter, the BOP properly credited him

with earned FSA time credits and advanced his “projected

release” date by one year (the maximum permitted). Accordingly, Micolta Bustos has received all of the relief he sought and his

petition is now moot.

Discussion

There are two ways by which inmates serving federally-

imposed sentences may reduce the amount of time they must serve

in prison. Those serving a term of imprisonment greater than

one year may earn “good time” credits for “exemplary compliance

with institutional disciplinary regulations.” 18 U.S.C. §

3624(b)(1). Inmates may also earn “time credits” under the

First Step Act for the successful completion of “evidence-based

recidivism reduction programming or productive activities.” 18

U.S.C. § 3632(d)(4)(A). This case involves the latter.

Micolta Bustos is currently serving a 120-month term of

imprisonment, to be followed by a two-year term of supervised

release. He is the subject of an Immigration and Customs

Enforcement (“ICE”) detainer that was lodged against him in May

of 2019. With the benefit of good time credits, his “Final

Statutory Release Date” is November 11, 2027. See Sentence

Monitoring Computation Data (document no. 6-3) at 1. None of

that is in dispute.

2 In addition to good time credits, Micolta Bustos has also

earned a substantial number of FSA time credits, 365 of which

may be applied toward early transfer to supervised release. See

FSA Time Credit Assessment as of March 25, 2023 (document no. 6-

4) at 1. See also 18 U.S.C.A. § 3624(g)(3) (providing that the

BOP may apply no more than 12 months of earned FSA time credits

to advance an inmate’s date of transfer to supervised release).

So, factoring in both his good time credits and his FSA time

credits, Micolta Bustos’s “Projected Release Date” should be

November 11, 2026 - that is, 365 days earlier than his “Final

Statutory Release Date.” But, says Micolta Bustos, the BOP is

refusing to apply those FSA time credits and, therefore, his

projected release is off by one year.

Micolta Bustos was, for a time, correct. But, on February

6, 2023, the BOP amended its procedures for implementing the

First Step Act. Among other things, it removed language from

the prior policy that prohibited prisoners subject to ICE

detainers from applying FSA time credits. See U.S. Dept. of

Justice, Bureau of Prisons, Program Statement 5410.10 CN-1 at 2

(Feb. 6, 2023). 1 Consequently, inmates like Micolta Bustos who

are subject to ICE detainers (but not final orders of removal)

1 Available at: https://www.bop.gov/PublicInfo/execute/ policysearch?todo=query&series=5000).

3 are now permitted to apply FSA time credits toward prerelease

custody or supervised release. See generally 18 U.S.C. §

3632(d)(4)(E)(i).

Following that change in policy, the BOP recalculated

Micolta Bustos’s Sentence Monitoring Computation Data. The

BOP’s records now accurately show that he is eligible both to

earn and to apply earned FSA time credits toward early release.

See FSA Time Credit Assessment dated March 25, 2023, at 1.

Additionally, the BOP has applied the maximum number of FSA time

credits (365) to calculate his “Projected Release Date,” which

is now November 11, 2026 (rather than November 11, 2027). See

Sentence Monitoring Computation Data at 1.

Conclusion

For the foregoing reasons, it is plain that Micolta Bustos

has received all the relief sought in his petition and there is

no longer any case or controversy. His petition (document no.

1) is, therefore, dismissed as moot. The government’s motion

for summary judgment (document no. 6) is likewise denied as

moot.

The Clerk of Court shall enter judgment in accordance with

this order and close the case.

4 SO ORDERED.

____________________________ Steven J. McAuliffe United States District Judge

April 27, 2023

cc: Jonathan Micolta Bustos, pro se Heather A. Cherniske, Esq.